DIMICH v. Albers Medical Distributors, Inc., et al., Defendants-Respondents. (2006)

Orders, Supreme Court, New York County (Richard B. Lowe III, J.), entered April 18, 2005, which denied plaintiff's motion for reinstatement of his common-law fraud claim and for class certification;  entered November 21, 2005, which denied plaintiff's motions for leave to renew and to serve a fourth amended complaint naming Margaret Williams as another putative class representative, and granted the Rite Aid defendants' cross motion for sanctions;  and entered February 24, 2006, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, with costs.

 In this putative class action alleging a scheme to sell counterfeit Lipitor, a prescription cholesterol-reducing drug, plaintiff Dimich failed to satisfy the typicality requirement of CPLR 901(a)(3) where, among other things, the prescription was issued to his wife and paid for, other than a $15 co-payment, by her insurance plan, and the recall letter was addressed to her, all of which create unique defenses to his claims.

 The predominance of individualized factual questions also renders this case unsuitable for class treatment (CPLR 901[a][2];  Feder v. Staten Is. Hosp., 304 A.D.2d 470, 758 N.Y.S.2d 314 [2003];  Lieberman v. 293 Mediterranean Mkt. Corp., 303 A.D.2d 560, 756 N.Y.S.2d 469 [2003] ).   This defect was not remedied by plaintiff's amendment of the definition of the multi-state class and New York subclass to include purchasers of “tainted,” rather than “counterfeit,” Lipitor (see Arons v. Rite Aid Corp., 57 UCC Rep.Serv.2d 348, 2005 WL 975462 [N.J.Super];  Crepeau v. Rite Aid, 71 Pa. D. & C.4th 449, 2005 WL 1041395, 2005 Phila. Ct. Com. Pl. LEXIS 198).   Defining the “tainted” or “counterfeit” Lipitor to include all of the recalled Lipitor impermissibly shifted the burden of proof to defendants to show which of the class members received genuine Lipitor (see also Collins v. Safeway Stores, 187 Cal.App.3d 62, 72, 231 Cal.Rptr. 638, 644 [1986] ).   Given that the prerequisites for class certification were not satisfied, the motion to substitute Williams was correctly denied because the amendment would have been futile (see Castillo v. Starrett City, 4 A.D.3d 320, 322, 772 N.Y.S.2d 74 [2004];  Saferstein v. Mideast Sys., 143 A.D.2d 82, 83, 531 N.Y.S.2d 333 [1988] ).

 Dimich's individual claims were correctly dismissed for lack of standing.   Insofar as he was an agent acting solely on behalf of his principal, he cannot sue a third party for injury caused to his principal (see Braten v. Bankers Trust Co., 60 N.Y.2d 155, 163-164, 468 N.Y.S.2d 861, 456 N.E.2d 802 [1983];  Zelber v. Lewoc, 6 A.D.3d 1043, 1045, 776 N.Y.S.2d 134 [2004] ).   Because the Lipitor was prescribed for his wife, Dimich is not the true purchaser and the warranty was not intended for him.   For the same reason, no duty was owed to him for negligent representation purposes.   The injury was too remote for purposes of General Business Law § 349 in that Dimich, acting as his wife's agent, may obtain reimbursement from her for the co-payment he allegedly advanced (see Blue Cross & Blue Shield of N.J. v. Philip Morris USA Inc., 3 N.Y.3d 200, 785 N.Y.S.2d 399, 818 N.E.2d 1140 [2004] ).   Because Dimich may have acted improperly in obtaining the prescription in his wife's name for his personal use, and with respect to seeking payment for the prescription by her insurer, he should not be permitted to bring a fraud claim (see Sabia v. Mattituck Inlet Mar. & Shipyard, Inc., 24 A.D.3d 178, 805 N.Y.S.2d 346 [2005] ).

The imposition of sanctions was warranted for repleading the claim in subsequent complaints after it was dismissed.   We have considered plaintiff's other arguments and find them unpersuasive.